Great Lakes Law

Supreme Court rules that mining waste can be dumped into waterbodies as “fill” under the Clean Water Act

In its second Clean Water Act case of the term, the U.S. Supreme Court has ruled that the mining waste can be dumped into waterbodies as “fill” under the Clean Water Act.  The mining company, Coeur Alaska, sought permission to dispose of waste from its Kensington Gold Mine into nearby Lower Slate Lake as “fill” and not “pollution” under the Clean Water Act.  Thus, the company claimed that discharge of the mining waste was only subject to section 404 of the Clean Water Act (which primarily applies to filling wetlands) and did not need a permit to pollute the lake from the EPA pursuant to CWA § 301.  The US Army Corps of Engineers, which administers the § 404 program in Alaska, agreed with the mining company and permitted the activity under § 404. 

Several environmental groups led by the Southeast Alaska Conservation Council challenged the Corps’ decision.  In Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 486 F.3d 638 (9th Cir. 2007), the U.S. Court of Appeals for the Ninth Circuit agreed with the environmental groups and struck down the Corps’ fill-disposal permit.  The court determined that the proposed discharge (piping a slurry of 210,000 gallons of process wastewater and 1,440 tons of tailings each day to the bottom of Lower Slate Lake) is not simply “fill” but really a “froth-flotation.”  Further, since the waste would be dumped and not used to “fill” anything, such a classification is not justified under the Clean Water Act. 

The Supreme Court, in Coeur Alaska v. Southeast Alaska Conservation Council, reversed the 9th Circuit’s decision and relied on an internal agency memo interpreting the Clean Water Act to only subject the disposal of fill to section 404.  The memo, written in May 2004 by Diane Regas, then the Director of the EPA’s Office of Wetlands, Oceans and Watersheds, to Randy Smith, the Director of the EPA’s regional Office of Water overseeing the mine, essentially sided with the Corps over the EPA.  A majority of the Supreme Court found that the Clean Water Act was ambiguous, and deferred to the agency memo’s ultimate interpretation.  The Supreme Court also seemed to take some comfort in the fact that the EPA could still exercise a veto power over a permit issued by the Corps under section 404.

This decision could have significant implications for water protection in the Great Lakes and nationwide.  It could allow mining waste to be dumped in the Great Lakes, as well as the many mountain streams and rivers where mountaintop coal mining is wreaking havoc on the landscape.  However, protections for freshwater could also be restored by the Obama administration and Congress.  Since the Supreme Court ruled that the Clean Water Act’s language was ambiguous and relied on an agency memo for interpretation, a new interpretation (especially in the form of an agency rule) would be the easiest fix.  Legislation has also been introduced in the U.S. Senate (SB 696) to redefine “fill” under the Clean Water Act.  As the impact of the decision plays out nationwide, both the Obama administration and Congress will be under pressure to fix the problem and restore protections for freshwater.

United States and Canada commit to update the Great Lakes Water Quality Agreement

Secretary of State Hillary Clinton used a special event commemorating the 100 year anniversary of the Boundary Waters Treaty between the United States and Canada to announce that the two countries will begin the process of updating the Great Lakes Water Quality Agreement. 

The Great Lakes Water Quality Agreement was initiated pursuant to the Boundary Waters Treaty and first signed in 1972 by President Richard Nixon and Prime Minister Pierre Trudeau.  The 1972 agreement focused on phosphorus pollution and created a precedent for environmental leadership by the International Joint Commission.  The Great Lakes Water Quality Agreement was amended in 1978 with a more ambitious purpose, “to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem.”  The 1978 amendments also included the goal of “virtual elimination” of persistent toxic substances.  The agreement was last amended in 1987 with provisions for addressing toxic hotspots and lakewide community planning.

In 2007, twenty years after the Great Lakes Water Quality Agreement was last amended, the International Joint Commission completed a major review to guide future updates.  This comprehensive review identified numerous threats to the health of the Great Lakes ecosystem, including new toxics, invasive species, harm from sprawl, and climate change.  Further, the agreement itself needs improvements in compliance, scientific capacity, and public openness and involvement.  Earlier this year, over 50 national, regional, state, and local environmental organizations (including the Great Lakes Environmental Law Center) joined a coalition led by Great Lakes United urging President Obama and Prime Minister Harper to revitalize the Great Lakes Water Quality Agreement.  Apparently they listened.

In announcing the countries’ commitment to update the Great Lakes Water Quality Agreement, Secretary Clinton described the new threats since the last update in 1987: “new invasive species have appeared in our lakes, new worrisome chemicals have emerged from our industrial processes, our knowledge of the ecology of the region and how to protect it has grown considerably. In its current form, the Great Lakes Agreement does not sufficiently address the needs of our shared ecosystem.”

Now the work must begin to craft an updated Great Lakes Water Quality Agreement that address the underlying causes and sources of water pollution (chemical, physical, and biological) that threaten water quality in the Great Lakes.  While significant progress has been made at reducing pollution from large industrial and municipal point sources, there are enormous gaps in our management of non-point pollution from runoff, air deposition, and other vectors that are largely unregulated.  An updated Great Lakes Water Quality Agreement can and must close these gaps in Great Lakes water quality protection.

Clean Water Restoration Act passes out of Senate committee, big step towards passage

Congress took a big step towards restoring protections for our Nation’s freshwater today when the U.S. Senate’s Environment and Public Works Committee reported out the Clean Water Restoration Act.  Jim Murphy, Wetlands and Water Resources Counsel for the National Wildlife Federation, is one of the leaders working on this issue and wrote the following guest post providing all of the details.  Jim coordinates NWF’s nationwide litigation and policy advocacy on Clean Water Act and wetlands protection and is a widely recognized expert on these issues.

Today the Senate Environment and Public Works Committee took a big step in ensuring Clean Water Act protections are fully restored to the Nation’s waters.  With the key leadership of Senators Barbara Boxer (D-CA), Max Baucus (D-MT), and Amy Klobuchar (D-MN), an amended Clean Water Restoration Act bill was voted out of committee 12-7.

Passage of the Restoration Act is made necessary by two fractured and confusing Supreme Court decisions, the 4-1-4 decision in Rapanos v. United States (2006) and the 5-4 ruling Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers (2001).  Combined with Bush Administration guidance documents interpreting these decisions in a cramped manner unfavorable to water protection, the result has been the loss or potential loss of basic CWA protections for tens of millions of acres of wetlands, as well as countless stream miles that include the almost 60 percent of stream miles in lower 48 states that do not flow year round.  Additionally, confusion created by SWANCC and Rapanos have led to hundreds of enforcement cases being shelved, weakened requirements for polluters in enforcement cases that have been settled, increased agency workloads with a resulting decline in agency morale, and increased uncertainty and wait times for the regulated community.

The Restoration Act that was voted out of the Senate Environment and Public Works Committee today will fix the problems created by SWANCC and Rapanos by:

1. Removing the confusing term “navigable” from the Act; 
2. Defining the term “waters of the United States” consistent with long-standing Corps and EPA regulations;
3. Providing comprehensive findings establishing Congress’s constitutional bases to broadly protect waters; and
4. Expressly leaving in place existing statutory and regulatory exemptions for agricultural and other activities. 

The bill (S. 787) was originally introduced by Senator Russ Feingold (D-WI), but passage was assured by Senators Boxer, Baucus and Klobuchar, who offered amendments that clarified that existing regulatory exemptions for prior converted croplands and waste treatment systems remained in place, and further clarifying the intent to only restore pre-SWANCC protections, not create new protections.  Senator Baucus’s leadership and effort was particularly instrumental in achieving a balanced and effective compromise.  Weakening amendments creating all types of exemptions for both waters and activities were offered, but resoundingly defeated.

Passage out of the Senate Environment and Public Works Committee has greatly boosted the bill’s chances of becoming law.  Conservationists believe the compromise bill can garner strong bi-partisan support on the Senate floor.  Additionally, it is anticipated a companion bill will soon move in the House Transportation and Infrastructure Committee, where Chairman James Oberstar (D-MN) has been an early champion of restoring pre-SWANCC protections to our waters.  In the previous Congress, nearly 180 House members co-sponsored a bill substantially identical to the one originally introduced by Senator Feingold this Congressional term.

Keep Burning Trash? A debate over the incinerator in Detroit

As the City of Detroit faces a looming decision about the future of its incinerator and waste management, the Detroit Free Press has published a series of debating op-eds on the greenhouse gas implications.  My op-ed recommends that the city stop using the incinerator for many reasons, which now includes the potential regulatory cost of millions of tons of greenhouse gas emissions.  Not surprisingly, the op-ed by the private company that operates the incinerator (and wants Detroit to keep using it) offers a different view, hoping that greenhouse gas emissions from the incinerator will be exempted from future federal regulations.

From the Detroit Free Press introduction: 

Here are two points of view on the incinerator in Detroit from the perspective of its impact on greenhouse gases, the emissions implicated in climate change and control of which is currently under debate in Congress.

Noah Hall, a Wayne State University professor who specializes in environmental law, warns that fees imposed on greenhouse gas emissions could prove costly for incinerator operations (link).

John Waffenschmidt, vice president for environmental science at the company that operates the incinerator, argues that greenhouse gas emissions are actually fewer at such a facility compared to landfilling trash and that Congress is likely to treat waste-to-energy facilities as an alternative energy source (link).

Updated on June 17, 2009 with short responses to the op-eds:

John G. Waffenschmidt - A great tool to fight global warming

Noah Hall - Reduce risks, emphasize recycling

Wayne Law launches new Environmental Law Clinic in partnership with the Great Lakes Environmental Law Center

Wayne State University Law School is launching a new Environmental Law Clinic in partnership with the Great Lakes Environmental Law Center.  Students started work this summer, and the clinic will be open for enrollment beginning this fall.  I’ll be co-teaching the clinic with Nick Schroeck, a former fellow with the Great Lakes Commission who currently works with the National Wildlife Federation and is a Great Lakes Environmental Law Center board member.  Nick is also my former student and recently taught a course on U.S.-Canadian environmental policy at Wayne State.  I’m personally grateful that Wayne State University and the Law School have supported this new initiative and have brought Nick on board to help.

The Environmental Law Clinic will teach students the skills and strategies needed to affect environmental policy in state and federal government.  Students will participate in the lawmaking process by preparing policy papers and formal legislative testimony, commenting on rulemaking and permit decisions, and engaging in judicial review and enforcement litigation. In all clinical projects, students will work with the Great Lakes Environmental Law Center and may represent other community organizations and public interest groups.

The Environmental Law Clinic will prepare students for their future legal and environmental advocacy work while serving a huge unmet need in Michigan.  The Environmental Law Clinic will be a resource for citizens, community organizations, and government leaders working towards environmental protection.  It will give Wayne Law students the opportunity to play a critical role in solving our region's most pressing environmental problems.  Priorities and focus areas will be protecting the Great Lakes and freshwater, transitioning to clean energy and curbing global warming emissions, assisting communities in achieving environmental justice, and ensuring good public process and openness in government decisions.

Judging from the media coverage, there is a great deal of excitement about the new Environmental Law Clinic.  The Detroit Legal News ran a great front-page story on the Environmental Law Clinic last week.  Model D, an exciting weekly e-zine, also had nice coverage.  Most importantly, the students are already making a difference by helping citizens and public interest organizations protect their communities and the Great Lakes.

Federal appeals court upholds EPA rule exempting water transfers from Clean Water Act regulation

The Eleventh Circuit Court of Appeals, based in Atlanta, has upheld the Bush EPA’s controversial water transfer rule, which would allow polluted water from a dirty waterbody to be pumped and dumped into a pristine waterbody without a Clean Water Act permit.  This is a critically important issue for water quality and invasive species in the Great Lakes and nationally.  For background on the issue, and the stakes for our lakes, rivers, and streams, see my prior post, “US EPA issues final rule exempting water transfers from Clean Water Act regulation.” 

Several states and numerous environmental organizations (including the Great Lakes Environmental Law Center representing the Michigan Council of Trout Unlimited) have filed petitions challenging the rule in federal court.  However, the petitions were stayed because a prior case, Friends of the Everglades v. South Florida Water Management District, which had been going on since before the final rule was issued, raised the same substantive issues.

The core of the issue is the legality of the “unitary waters” theory that the Bush EPA used to exempt the transfer of pollutants between waterbodies from Clean Water Act regulation.  The Clean Water Act bans the “discharge of any pollutant” without a permit.  “Discharge” is defined as “any addition of any pollutant to navigable waters from any point source.”  (See 33 U.S.C. §§ 1311, 1342(a)(1), 1362(12)).  Under the EPA’s “unitary waters” theory, the waters of the United States are not distinct lakes, rivers, and streams, but one big bucket of water.  So, under this theory, taking polluted water from a dirty river and dumping that water into a pristine trout stream is not “adding” pollutants to navigable waters (which would otherwise be illegal from point sources without a permit).

As the court’s decision noted, “[t]he unitary waters theory has a low batting average.  In fact, it has struck out in every court of appeals where it has come up to the plate.”  The other courts considering this issue “take the view that the transfer of pollutants from one meaningfully distinct navigable body of water to another is an ‘addition … to navigable waters’ for Clean Water Act permitting purposes.”

However, these prior cases were all decided before the Bush EPA issued a final rule adopting the unitary waters theory.  Agency rules are entitled to deference as long as the rule is a reasonable interpretation of an ambiguous statute.  (This is usually called Chevron deference, named after the Supreme Court’s decisions in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)).  Chevron deference is a simple concept – if the statute is not clear, then the agency gets deference in its interpretation, unless its interpretation is arbitrary and capricious.  As the court in this case stated, for the EPA’s regulation to be upheld, “there must be two or more reasonable ways to interpret the statute, and the regulation must adopt one of those ways.”

The court ultimately concluded that the relevant Clean Water Act language could be interpreted in at least two different ways, and that the EPA’s rule is consistent with one of those interpretations:

There are two reasonable ways to read the § 1361(12) language “any addition of any pollutant to navigable waters from any point source.”  One is that it means “any addition . . . to [any] navigable waters;” the other is that it means “any addition . . . to navigable waters [as a whole].” 

The court further acknowledged that the EPA’s interpretation undermines the Clean Water Act’s goals, but recognized the political realities that led to an imperfect Clean Water Act:

[I]t may seem inconsistent with the lofty goals of the Clean Water Act to leave out of the permitting process the transfer of pollutants from one navigable body of water to another, but it is no more so than to leave out all non-point sources, allowing agricultural run-offs to create a huge “dead zone” in the Gulf of Mexico.  Yet we know the Act does that.  What this illustrates is that even when the preamble to legislation speaks single-mindedly and espouses lofty goals, the legislative process serves as a melting pot of competing interests and a face-off of battling factions.  What emerges from the conflict to become the enactment is often less pure than the preamble promises.  The provisions of legislation reflect compromises cobbled together by competing political forces and compromise is the enemy of single-mindedness.  It is not difficult to believe that the legislative process resulted in a Clean Water Act that leaves more than one gap in the permitting requirements it enacts.

Having concluded that the statutory language is ambiguous, the court ruled that the EPA’s regulation, which accepts the unitary waters theory that transferring pollutants between navigable waters is not an “addition . . . to navigable waters,” is a permissible construction of that language. 

However, this issue is far from over.  Earthjustice, which represents the plaintiff environmental groups, plans to file for a rehearing before a full circuit appellate panel.  With a circuit split, the issue could eventually go to the U.S. Supreme Court.  Further, the Obama EPA could make additional litigation unnecessary by simple rescinding the rule or revising it to protect our freshwater from pollution and invasive species transferred from other waterbodies.  For now, I expect a few more rounds of appellate litigation before environmental groups start pressuring the Obama EPA on this issue.

The Great Lakes Environmental Law Center

The Great Lakes Environmental Law Center was founded to protect the world’s greatest freshwater resource and the communities that depend upon it.  Based in Detroit, the Great Lakes Environmental Law Center has a board and staff of dedicated and innovative environmental attorneys to address our most pressing environmental challenges.  The Great Lakes Environmental Law Center was also founded on the idea that law students can and must play a significant role in shaping the future of environmental law.  In all of our work, law students are one of the Great Lakes Environmental Law Center’s most valuable resources.

Our current projects:

Meeting the challenge of climate change

Stopping the spread of aquatic invasive species

Finding alternatives to transbasin water diversions

Implementing the Great Lakes Compact

Transitioning to clean energy

Reforming water law

For more information on the Great Lakes Environmental Law Center or to learn more about how you can help with our work, please email Noah Hall, Executive Director.

New York State Supreme Court upholds strict new state regulations to control ballast water discharges and prevent invasive species in the Great Lakes

The following guest post is by Thomas Cmar, an attorney with the Natural Resources Defense Council’s Midwest office in Chicago.  Thom and NRDC have been at the front of the fight to protect the Great Lakes from invasive species, defending tough new state laws and advocating for a strong national policy.  Thom’s work recently resulted in a big win in the legal battle against invasive species when the New York State Supreme Court upheld that state’s strict new regulations to control ballast water pollution against the shipping industry’s challenge in Port of Oswego Authority v. Grannis.

The New York State Supreme Court (Albany County) recently dismissed a challenge to permit conditions to control discharges of ballast water containing invasive species from ocean-going vessels into the freshwater ecosystems of the Great Lakes.  Shipping interests had argued that New York State’s restrictions were both illegal under state law and unconstitutional, largely because they were stricter than those in U.S. EPA’s nationwide Clean Water Act general permit.  The Natural Resources Defense Council and National Wildlife Federation intervened and filed a brief supporting the state’s regulations.  The decision of Justice Robert Sackett in Port of Oswego Authority v. Grannis rejected the shippers’ arguments and upheld the state regulations, finding “[i]t is undisputable that ballast water on ocean-going vessels ... is a source of significant potential and actual biological pollution for the state’s water systems.”

Ballast water from ocean-going vessels has introduced over 180 different invasive species into the Great Lakes, and new species are arriving at a rate of one every six months.  The toll has been breathtaking.  The entire Lake Michigan ecosystem has been changed by invasive species.  The filtering of invasive mussels has, for the first time ever, allowed the lake floor to be carpeted with algae.  These conditions have helped the invasive round goby become the most numerous fish in the lake, while all but eliminating many of the native species.  In the 1980’s, high profile invasions by the zebra mussel and sea lamprey decimated local drinking water infrastructure and fishing industries.

No one disputes that the ongoing invasion of alien species presents a serious problem for the Great Lakes, and not just from an environmental perspective.  Alien species have already cost the Great Lakes economy billions of dollars.  Strict rules on discharge of ballast water don’t just protect the Great Lakes ecosystem, they also help defend multi-billion dollar tourism, fishing, and recreational boating industries.

The Albany court’s ruling upholds New York’s decision to join Michigan and California as leaders in the fight to protect our waterways.  Like those other two states, the New York rules require ships operating in New York waters to begin using technology to treat any ballast water they discharge to ensure that it does not cause any more invasions.  An expert panel convened by the State of California was unable to find any valid scientific basis to recommend a less stringent alternative.

Here at the Natural Resources Defense Council, we believe that it is time for the federal government to step up and join these trailblazing states.  U.S. EPA has both the legal authority and the obligation to make tough ballast water rules like those in New York, Michigan, and California the national standard.  We will continue to advocate, and when necessary litigate, at both the state and federal level to protect the world’s last great places, like the unique freshwater ocean that is the Great Lakes.

President Obama taps Great Lakes advocate Cam Davis to lead Great Lakes restoration program

President Obama and EPA Administrator Lisa Jackson have tapped Cam Davis, most recently President of the Alliance for the Great Lakes, for a position that most people will simply call “Great Lakes Czar.”  Officially, Cam has been appointed by Administrator Jackson as Senior Advisor on the Great Lakes.  While the position will be with the EPA, Cam will be working with numerous agencies to coordinate and implement the Great Lakes restoration work.  This appointment fulfills President Obama’s campaign promise to “designate a Great Lakes Coordinator in the U.S. Environmental Protection Agency to prioritize coordination of Federal, State and Local Agencies’ agendas, policies, expertise, funds and staff.”

Cam has been a good friend and colleague since the mid-1990’s, when we both worked at the National Wildlife Federation’s Great Lakes office in Ann Arbor.  He is incredibly skilled at crafting a vision for environmental solutions and communicating the importance of environmental protection.  He has a wealth of experience - primarily leading environmental advocacy organizations and programs, but also within government agencies.  He brings people together, listens to different opinions, and can find common ground in seemingly competing perspectives and agendas.  The job he’s taking is a tough one, essentially moving different bureaucracies in all levels of government towards a shared goal of Great Lakes restoration.  But Cam knows and loves the Great Lakes like few others, and with the President’s support he’ll be a tremendous advocate for Great Lakes restoration within the federal government.   

Signs of progress in moving from coal to clean energy in Michigan

Two down, three to go.  That’s the latest tally in the fight to stop new coal plants in Michigan and move the state towards clean, renewable energy.  In the past few weeks, two of the proposed coal plants in Michigan have officially voided their permit applications – Northern Michigan University’s Ripley Heating Plant in Marquette and Mid-Michigan Energy/LS Power’s proposed plant in Midland.

The Northern Michigan University plant took a major legal blow in February when the U.S. EPA’s Environmental Appeals Board sided with the Sierra Club on several key issues in its challenge to the Michigan Department of Environmental Quality’s air permit.  The EPA Environmental Appeals Board’s decision, PSD Appeal No. 08-02, ruled that the Michigan DEQ was required to consider wood burning or other cleaner fuel sources when determining the Best Available Control Technology (BACT) for the proposed coal boiler under the federal Clean Air Act.  Renewable wood would produce less sulphur dioxide (SO2) emissions than the coal that Northern Michigan University proposed using, and thus the DEQ must require wood or other cleaner fuels pursuant to BACT whenever possible.  The EPA decision further directed the Michigan DEQ to consider requiring BACT for carbon dioxide (CO2) emissions, the primary greenhouse gas that causes global climate change.  After the EPA decision, Northern Michigan University wisely gave up its plan to use more coal to meet its energy needs. 

The reasons for Mid-Michigan Energy dropping its proposed plant in Midland are less clear.  It’s likely a combination of the new legal precedent from the Northern Michigan University case, the EPA’s moves towards regulating greenhouse gas emissions nationally, and various economic factors that make building a coal plant just a bad business decision.  And as with Northern Michigan University’s decision, the growing opposition to coal plants from a diversity of citizens and organizations played a huge role.

With these two down, the remaining three proposals for new coal plants in Michigan with permit decisions pending are the Wolverine Power Cooperative proposal in Rogers City, the Holland Board of Public Works proposal, and the Consumers Energy proposal near Bay City.  Public comments on the Consumers Energy proposal just closed – see the lengthy and detailed comments submitted by the Natural Resources Defense Council, the Environmental Law and Policy Center, the Great Lakes Environmental Law Center, and the Sierra Club on behalf of a coalition of environmental organizations.  The national trend of moving from coal to clean energy finally seems to be playing out in Michigan, although the work is far from done.

Detroit must consider the cost of greenhouse gas regulation in continuing to operate the country's largest garbage incinerator

The City of Detroit’s garbage incinerator - the largest trash incinerator in the world - has long been a scourge of local residents and environmental justice groups.  It burns nearly 800,000 tons of trash per year, emitting hazardous air pollutants including mercury, lead, and dioxins.  Asthma hospitalization rates in Detroit are over three times the average rate of the state of Michigan.  In part due to the incinerator, Detroit is the only city of the 30 largest cities in the United States without any significant curbside recycling program (a pilot program was recently launched, and hopefully will be expanded soon).  For the full scoop on the incinerator – and the citizens working for a better solution – check out Curt Guyette’s Detroit Metro Times article and the Ecology Center’s many resources and videos.

The Great Lakes Environmental Law Center is now urging the City of Detroit to consider another reason to close down the incinerator and move to more modern waste management practices (download comment letter to Detroit City Council President Ken Cockrel Jr.).  Based on data provided by the Greater Detroit Resource Recovery Authority (which manages the incinerator) and U.S. EPA estimates for CO2 emissions, the facility could be responsible for as much as 750,000 tons of CO2 emissions per year.  Essentially, an incinerator does the opposite of carbon sequestration – it takes garbage containing tons of carbon, burns it, and releases the carbon into the atmosphere.  Pound for pound, burning municipal solid waste emits more CO2 per megawatt hour of electricity than burning coal.

As Obama’s EPA moves forward with steps to regulate greenhouse gas emissions under the Clean Air Act and Congress moves forward with the the American Clean Energy and Security Act (ACES), emitting significant quantities of CO2 and other greenhouse gases will soon become a legal and fiscal liability.  Strict application of the Clean Air Act could (and should) impose huge regulatory costs on the incinerator’s CO2 emissions.  Even under a more flexible cap and trade system, the City of Detroit would need to purchase credits for as much as 750,000 tons of CO2 emissions per year.  If those credits cost $10 per ton (a reasonable estimate), operating the incinerator will cost the City of Detroit an extra $7,500,000 per year.

The solution is clear.  Detroit’s City Council has endorsed a proposal by a broad coalition of community organizations – environmental, civil rights, health, labor, faith-based and social service advocates – for a New Business Model for Solid Waste Management in Detroit.  The City Council will soon be voting on a budget and taking other action on the incinerator’s future.  If City Council takes into account the cost of CO2 emissions, closing down the incinerator makes sense for both the environment and the City’s budget.

Cars and climate change

Making the drastic reduction in greenhouse gas pollution that scientists have determined is necessary to prevent catastrophic climate change will require major changes in how we generate and use electricity, design and build homes and offices, and manufacture and move products.  It will also require fundamental changes in how we get around every day.  Quite simply, we need less polluting cars and we need to drive them less.  This means that advocates for solving climate change (which should be all of us by now) must take a hard look at what we drive, how we drive, and alternatives to driving.  Fortunately, environmental law and policy is moving in this direction, with several exciting developments in the past week.

The American Clean Energy and Security Act (ACES), authored by House Energy and Commerce Committee Chair Henry Waxman (D-CA) and House Energy and Environment Subcommittee Chair Ed Markey (D-MA), would achieve a significant reduction in the total U.S. emissions of greenhouse gases responsible for global warming.  The legislation requires a minimum 17% reduction in greenhouse gases below 2005 levels by 2020, essentially cutting 1.2 billion metric tons of carbon dioxide in 2020 compared to inaction (there are many other provisions in ACES to reduce greenhouse gas pollution – see NRDC’s analysis for more details).  This reduction is comparable to taking 500 million cars off the road, which is twice the number of U.S. cars on the road today.  (Tip to Joe Romm of Climate Progress for all of these numbers and references). 

Obviously we cannot simply get rid of all cars – nor would doing so alone even meet the necessary greenhouse gas pollution reductions – but using cars less and making cars less polluting must be part of the equation.  President Obama and Congressional leaders know this, and in the past week have announced several initiatives to make this change.  Late last week, Senate leaders proposed legislation that would reduce automobile use and carbon emissions and boost public transit and rail service.  The Senate legislation requires annual reductions in per capita motor vehicle miles traveled (VMT) to reduce total U.S. surface transportation-generated CO2 emissions by 40 percent by 2030.

Making these significant cuts in per capita VMT (which means how much we drive) will require major changes in transportation funding at the federal, state, and local levels.  Instead of spending money on more highways and parking, resources must be invested in modern, reliable transit.  Americans use transit less than any other comparable country, according to a recent National Geographic Society report.  However, as Kaid Benfield, Director of NRDC’s Smart Growth Program points out, Americans surveyed reported that the biggest obstacle to their use of public transportation was lack of availability.  So we don’t use transit because it’s not readily available, which undermines support for greater investments in transit to make in more available.  Kudos to the Senate leaders for proposing legislation to end this chicken-and-egg cycle.

President Obama is also taking strong leadership to reduce our dependence on cars and make our cars more efficient.  He made his bold vision for high speed rail a centerpiece of the Recovery Act.  High speed rail would revitalize the Midwest, linking our cities and making the collective region far more economically competitive while reducing our dependence on dirty fossil fuels.  And today, President Obama is expected to announce that he has reached a deal with auto companies and states to significantly raise mileage standards, up to 36 miles per gallon for new passenger vehicles and light trucks by 2016.  

But we can’t simply wait for direction from Washington DC on this issue.  Local governments must consider reducing car use in all transportation and land use decisions.  California has led the way, with innovative enforcement of the California Environmental Quality Act by the Attorney General and environmental organizations such as the Center for Biological Diversity’s Climate Law Institute.  In several recent cases, California cities have either agreed or been forced in court to study and mitigate the impact of land use and transportation plans and investments in vehicle use and CO2 emissions.

In Michigan, the Great Lakes Environmental Law Center recently raised concerns about the City of Ann Arbor’s decision to spend about $50 million on a huge new parking structure.  Ann Arbor had adopted a resolution to reduce greenhouse gas emissions 20% from 2000 levels by 2015.  Meeting this goal will require reducing vehicle miles traveled (VMT) in the city, but Ann Arbor’s State of Our Environment Report acknowledges that total VMT have been steadily growing over the last several years.  The Great Lakes Environmental Law Center is concerned that the proposed new parking garage will increase VMT and make it difficult for Ann Arbor to achieve its greenhouse gas emission reductions.  For more details, see the Great Lakes Environmental Law Center letter submitted on behalf of NRDC, Sierra Club, and local residents and media coverage from the Ann Arbor Chronicle and the Ann Arbor News.  Ann Arbor has a reputation for environmental leadership and should take this opportunity to invest public money in the direction of the future, not the past.

Great Lakes Senators Key to Future of Clean Water Act

Since the Supreme Court’s infamously muddled and split decision in Rapanos v. United States created uncertainty for protecting non-navigable streams and wetlands under the Clean Water Act, political efforts have been building to restore protections through the legislation called the Clean Water Restoration Act.  After several years of legislative and outreach work, 2009 could be the year of success for the Clean Water Restoration Act.  I asked my good friend and former colleague Chris Grubb of the National Wildlife Federation, which is helping lead this effort, to provide the inside scoop:

When it comes to protecting waters and wetlands from polluting activities under the Clean Water Act, it’s a mess out there!  That’s the basic sense of a recently released EPA Office of the Inspector General report.  The report demonstrates that recent Supreme Court rulings and subsequent agency guidance are having a damaging effect on the agencies’ ability to administer an effective program.  In addition to good old fashioned regulatory uncertainty, the report also indicates that:

“An estimated total of 489 enforcement cases (Sections 311, 402, and 404 combined) have been affected such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.”

The backstory: In 1972 Congress passed the Clean Water Act with an ambitious goal of restoring and maintaining the biological, physical, and chemical integrity of the nation’s waters and eliminating polluting discharges by 1985.  The law generally protects waters from filling and point sources of pollution, requiring a permit for such discharges.  While the historic scope of waters protected by the law has been broad, this scope has recently been called into doubt.

The doubt was first created by the Supreme Court’s 2001 decision Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineer, in which the court ruled that intrastate, isolated ponds could not be determined jurisdictional under the Clean Water Act based solely on their use as migratory bird habitat.  While this ruling was narrow, it started the confusion.  A subsequent Bush Administration guidance interpreted the ruling in a manner that effectively removed basic protections for at least 20 millions acres of waters and wetlands in the lower 48 states.

Then the 2006 consolidated Supreme Court cases – both of which started in Michigan – Rapanos / Carabell vs. United States resulted in a divided Court issuing a confusing 4-4-1 divided ruling that cast doubt on whether non-navigable tributaries and their associated wetlands were protected by the Clean Water Act.  While a majority of the Supreme Court could not agree on any governing standard, the effect of the decision has been another damaging agency guidance that sets forth a time consuming case-by-case process to determine jurisdiction over many streams and wetlands.  The Rapanos decision has put at risk safeguards for approximately 60% of the nation’s stream miles (exclusive of Alaska) and their neighboring wetlands.

The fix: A group of federal legislators led by Senator Feingold (D-WI) in the Senate and Representatives Oberstar (D-MN), Dingell (D-MI), Ehlers (R-MI), and others in the House have introduced legislation over the past few sessions of Congress called the Clean Water Restoration Act (the 2007 version is available here).  The purpose of the legislation is to make clear Congress’s intent that Clean Water Act protections be applied broadly, and to return to pre-SWANCC era protections. Congressman Dingell, who managed debate on the House floor during passage of the Clean Water Act, said the following at the introduction of the bill in the 110th Congress:

“When ruling on the recent challenge to the Clean Water Act, the Supreme Court continued to bungle the clear intent of Congress.... I’m very pleased to join with Congressmen Oberstar and Ehlers to help on this important legislation that will correct the course the Supreme Court set us on and prevent any further mess made of a wonderful law.”

The Clean Water Restoration Act will fix the current mess by removing the term “navigable” from the Clean Water Act, the term that the Supreme Court focused on as the basis for its confusing rulings in SWANCC and Rapanos; define the scope of waters protected based on the historic regulatory scope of the Clean Water Act; and provide foundations for Congress’s ability to protect waters under the Constitution.  In the current Congress, the Clean Water Restoration Act has again been introduced in the Senate, and introduction is soon expected in the House.

In the Senate, the legislation is currently awaiting action in the Senate Environment and Public Works Committee, where a mark-up of the bill is imminent. Senators from Great Lakes states – Senators Klobuchar (D-MN), Specter (D-PA), and Voinovich (R-OH) – will have an important role in whether this legislation passes the committee, and are said to be engaged in negotiations with other committee members behind closed doors. This week the Minneapolis Star-Tribune gave Senator Klobuchar a gentle nudge in making sure this important legislation reaches the finish line.  The National Wildlife Federation is working to ensure that all three of these Senators support the bill – you can join that effort at www.nwf.org/waters.

International Joint Commission draft report blames climate change, not dredging, for falling Great Lakes water levels

Falling lake levels in the Great Lakes, especially Lake Huron and Lake Michigan, have generated considerable controversy and scientific debate.  In 2004, a study by the internationally respected coastal consulting engineering firm Baird & Associates found that decades of dredging in the St. Clair River, shoreline alterations, and sand and gravel mining have led to an increased conveyance that draws more water from Lakes Michigan and Huron into the lower lakes (Erie and Ontario) and out the St. Lawrence River to the Atlantic Ocean.  The Baird & Associates study was commissioned and paid for by the GBA (Georgian Bay Association) Foundation, with advocacy work led by the Georgian Baykeeper.  In response to the work of the GBA Foundation and Georgian Bay advocates (and resulting political pressure) the International Joint Commission agreed to conduct a public, scientific study to determine why lake levels are falling.

The result of the IJC International Upper Great Lakes Study is a draft report “Impacts on Upper Great Lakes Water Levels: St. Clair River” released for public comment on May 1.  The IJC draft report basically concludes that Lakes Michigan-Huron (which are really one water body) dropped more than 9 inches (23 cm) compared to Lake Erie between 1962 (the time of the last major dredging in the St. Clair River) and 2006.  The IJC draft report blames the falling lake levels on three primary factors:

1. Changes in climate, accounting for most of the decline in the last ten years.

2. A relatively dramatic and rapid change in conveyance in the St. Clair River in the mid-1980s, possibly resulting from a major ice jam. 

3. “Glacial isostatic adjustment,” which is the rebounding of the earth’s crust after the melting of the glaciers about 10,000 years ago (the draft report quantifies this as a relatively minor factor). 

According to the IJC draft report, these three factors, and not the dredging of the St. Clair River by the U.S. Army Corps of Engineers or other human physical disturbances, account for the declining lake levels.  The draft report concludes that there has been no ongoing erosion along the length of the St. Clair River bed since at least 2000, and thus remedial measures on the St. Clair River are not warranted at this time.

While many of us had hoped that the IJC’s work would provide a definitive answer to the question of falling lake levels to guide policy solutions, it may have created more controversy.  As reported by Dan Egan of the Milwaukee Journal Sentinel, the IJC draft report has not yet been peer reviewed, despite previous claims by the study co-chairman.  So the IJC has basically put the report and policy recommendations out for public comment without the benefit of scientific peer review.  This was done to speed things along in response to public and political pressure, according to the IJC. 

I appreciate the IJC’s responsiveness to growing concern over falling lake levels, but taking public comment before the study has been peer reviewed is putting the cart before the horse.  As a member of the public, I want to trust the scientific work of the IJC (and that trust depends on peer review), then offer my input on what the policy response should be.  Instead, the public won’t have the results of the peer review until the public comment period is almost over.  There’s a simple fix to this problem – extend the public comment period for 60 days after the peer review is completed (assuming the peer review approves the draft report’s methodology and conclusions).  Then we can have an informed and public debate about how to best protect Great Lakes levels from climate change, dredging, and other human impacts.

Update: 5/7/09 Dan Egan of the Milwaukee Journal Sentinel has more excellent reporting following up on the lack of public disclosure and peer review.

Congressional talk about water and the Great Lakes, now ranked

Talk may be cheap, but a great new website gives the public quantified data on what Congress is talking about.  Capitol Words (“Taking Congress at its Word”) is another innovative project of the Sunlight Foundation, which uses new technologies to make the federal government more open and transparent to the public.  Capitol Words aggregates information from the Congressional Record to provide a simple indicator of what words (and issues) Congress is focusing on at any given time.  It also provides comparisons and rankings, so you can easily see which members of Congress are most focused (or at least most outspoken) on any given issue.

I of course started with the basics: “water.”  Talk about “water” in Congress has dramatically increased over past years, which is generally a good sign.  Here are the top 10 lawmakers using the word “water”:

1. Rep. James Oberstar (D-MN-8)
2. Sen. Jeff Bingaman (D-NM)
3. Sen. Dianne Feinstein (D-CA)
4. (former) Sen. Kenneth Salazar (D-CO)
5. Rep. Earl Blumenauer (D-OR-3)
6. Sen. Richard Durbin (D-IL)
7. Sen. Barbara Boxer (D-CA)
8. Rep. Barton Gordon (D-TN-6)
9. Rep. Eddie Johnson (D-TX-30)
10. Sen. Byron Dorgan (D-ND) 

Not surprisingly, the top ten list has many of the key Congressional leaders and committee chairs, and while dominated by Westerners, there are a few Great Lakes leaders in the mix.

To get a snapshot of attention on the Great Lakes, I next tried “lakes.”  As with water in general, talk about lakes in Congress has also increased significantly over past years.  And the top ten list is dominated by members from Great Lakes states:

1. Rep. James Oberstar (D-MN-8)
2. Rep. Mark Kirk (R-IL-10)
3. Sen. Carl Levin (D-MI)
4. Rep. Candice Miller (R-MI-10)
5. Rep. Vernon Ehlers (R-MI-3)
6. Rep. Bart Stupak (D-MI-1)
7. Rep. John Dingell (D-MI-15)
8. (former) Rep. Rahm Emanuel (D-IL-5)
9. Rep. John Boozman (R-AR-3)
10. Sen. Debbie Stabenow (D-MI)

I was a bit disappointed by the record of talk about “pollution” in Congress.  After a peak in 2004, discussion of “pollution” has dropped way down.  Too bad pollution hasn’t dropped with Congress’ attention span. 

“Clean coal, leprechauns, and unicorns” – guest post by Chuck Warpehoski of the Interfaith Council for Peace and Justice

The following guest post is by Chuck Warpehoski, Director of the Interfaith Council for Peace and Justice.  (For a good look at Chuck, check out his photo and info as one of the Social Citizens Makeover winners.)  Among its many goals and important projects, the Interfaith Council for Peace and Justice is committed to environmental protection and stewardship, focusing on climate change.  When I asked Chuck to explain why a religious faith-based organization is putting so much effort into environmental stewardship, he responded:

“For those of us in the faith community, climate change and environmental stewardship issues are deeply religious.  Jews and Christians, for example, see that in the Genesis creation story God called the earth, the waters, the plants, and the animals ‘good.’  In this creation story God’s first command to humans was to care for the natural world the way a good king would care for his subjects.  In a similar manner, the Muslim Qur'an says that humans are appointed by Allah as ‘guardians on earth’ (Qur'an 6: 165).

What’s more, all the worlds’ faith traditions call their followers to care for the weak and vulnerable.  In Christianity, for example, Jesus tells his followers they will be judged by how they treat ‘the least of these.’ We know that the people who suffer most from environmental damage are ‘the least of these.’  It is the low-income children who live downwind from power plants.  It is the subsistence farmers in Bangladesh who will be washed out by rising sea levels caused by climate change.  So whether we look to religious teachings to care for God’s earth or to care for those who would be hurt most by global warming pollution, people of faith increasingly see that there is a spiritual obligation to protect the environment.” 

Chuck and other faith-based community leaders have been actively supporting the transition to clean energy and opposing the proposed new coal plants in Michigan.  Here is Chuck’s story:

“Clean coal, leprechauns, and unicorns.”  Students, faith leaders, tribal leaders, and environmental groups chanted about these three fairy tale creations prior to participating in the April 14 and 15 public hearings regarding the proposed coal-fired power plant in Bay City, Michigan.  Meanwhile, coal plant supporters shouted “go live in a cave.”  While some Bay City area businesses and unions have supported the power plant for the 1,000 short-term construction jobs and the 100 permanent jobs at the power plant, environmental groups see longer-term concerns.

Michigan is at a decision point.  What kind of energy future will we invest in?  Will we continue to invest in a fossil-fuel energy system, or will we invest in renewable energy?

There are jobs to be had in both cases.  As Van Jones of Green For All is fond of saying, “Solar panels don't install themselves.”  But only one path will help us address the threat of climate change, protect children’s health by reducing asthma-causing particulate emissions, and stop the blight that mountaintop removal and other destructive mining practices have created on America’s wild places.  Indeed, the very need for the proposed coal plants is under question.  Why should Michigan be creating more electricity when demand for electricity is declining in Michigan due to the economic slump and the declines in the domestic auto industry?

The Michigan Department of Environmental Quality is accepting comments on the proposed air quality permit until May 20.  You can make your comments online at the DEQ website or through the Clean Energy Now website.

Environmental law and policy highlights of Obama’s first 100 days

George W. Bush spent 8 years in the White House undermining environmental protection, eventually leaving office with the worst environmental record of any modern president.  His regulatory rollbacks and refusal to enforce environmental laws were most immediately apparent, but history will judge him even more harshly for his total lack of leadership in meeting the national and global clean energy / climate change challenge.  President Obama could have come into office and done nothing more than put in a few LED lights around the White House and been a huge improvement.  But simply being better than Bush II would not be enough – our environmental problems demand immediate and strong presidential leadership.  Overall, this is exactly what Obama has delivered in his first 100 days.  Here are my three highlights:

1. A commitment to open and accountable government.  As Obama said soon after taking office, “a democracy requires accountability, and accountability requires transparency.”  Open government is the foundation for good environmental policy, and Obama and the new EPA leadership made a strong commitment to the letter and spirit of the Freedom of Information Act and public participation in their first week after taking office.

2. Highly qualified appointees with scientific and legal integrity to lead the federal government.  Some of Obama’s high profile appointees are already well known for their scientific and legal credentials, such as Dr. Steven Chu, the Nobel Prize winner appointed as Secretary of Energy.  But in every key agency, Obama has made excellent appointments with superbly qualified individuals.  Two deserve special mention.  Dr. Jane Lubchenco, one of the most highly cited marine ecologists, an elected member of the National Academy of Sciences, and recipient of a MacArthur Fellowship (the “genius” award), was appointed Administrator of the National Oceanic and Atmospheric Administration, responsible for a range of scientific and regulatory functions from climate monitoring to fisheries management.  Professor Lisa Heinzerling, lead author of the brief in Massachusetts v. EPA that persuaded the Supreme Court that the EPA has the authority to regulate carbon dioxide emissions pursuant to the Clean Air Act (and co-author of our casebook Environmental Law and Policy: Nature, Law, and Society) was appointed as a special advisor to EPA Administrator Lisa Jackson on climate change issues.

3. Presidential leadership and comprehensive solutions to meet the clean energy / climate change challenge.  President Obama appears to be well ahead of most of Washington DC in moving forward a clean energy / climate change agenda.  Most recently, his EPA issued a proposed endangerment finding for greenhouse gas pollution that would trigger a new regulatory process for carbon dioxide emissions and other climate change pollutants.  In addition to new regulation, Obama has also shown in his first 100 days a total commitment to transforming the American energy, transportation, and building sectors, investing in smart-grid technologies, high speed rail, and home weatherization programs.

President Obama and his administration have been understandably focused on these major issues in their first 100 days, but let’s not forget some items still on Team Obama’s to-do list for the Great Lakes:

1. Direct the EPA to regulate ballast water discharges and stop the spread of invasive species immediately (fulfilling a key Great Lakes campaign promise).

2. Repeal the EPA’s recent rule exempting water transfers and interbasin diversions from Clean Water Act regulation (if the rule isn’t stuck down in federal court first).

3. Drop the U.S. Army Corps’ ridiculous interpretation of the Clean Water Act that allows tons of mining waste to be dumped into lakes and rivers as “fill” (even if the Supreme Court would allow such an interpretation). 

I expect President Obama will take care of these lower profile issues in due time, while keeping his focus on the big picture issues of clean energy and climate change.  Based on what he has already accomplished in the first 100 days, the next 1,000 days should produce the type of transformative changes in environmental law and policy that his campaign promised.

A short introduction to Canada-United States transboundary environmental protection

The Windsor Review of Legal and Social Issues is publishing a special volume on Canadian and international environmental law, and to bring an American perspective, I was asked to write a short introductory article.  Titled "Canada-United States Transboundary Environmental Protection" the brief article surveys the major environmental treaties, agreements, and legal decisions that have shaped one of the best international environmental relationships in the world.  Yet the real value of the countries’ historical and recent successes is still to be seen in how they address the massive challenge of climate change.  From the article’s conclusion:

These recent successes in environmental protection and cooperation [such as the Great Lakes Compact and companion Agreement] give reason for optimism that Canada and the United States can together address the greatest environmental challenge of our time – climate change.  The two countries have much to lose from the impacts of climate change and much to gain from leading a global transformation from fossil fuels to clean energy.  They have the resources, both natural and human, to develop new technologies based on wind, solar, and other renewable sources of energy.  Most importantly, both countries have a strong tradition of environmental stewardship and an energized and engaged citizenry that will demand nothing short of success in meeting the challenge of climate change.  Canada and the United States led the way in developing international environmental law in the twentieth century, and to solve the global problem of climate change, they must lead again in the twenty-first century.

Car free in the Motor City - riding the rails from Ann Arbor to Detroit

Today is the last day of our semester at Wayne Law, so it’s now official – I commuted to Detroit from Ann Arbor for the entire semester without driving a car.  No small feat, as we haven’t had a reliable transit system connecting Ann Arbor to Detroit since 1983.  That was part of my motivation – I wanted see first-hand what the obstacles are to putting in place a modern, efficient, reliable regional transit system for the Detroit metro area.  I also wanted to save money, reduce the stress of driving, use the time for work (including legal actions to advance transit), and burn less oil and cause less pollution.  Taking the train accomplished all this and more.

To make it work, I usually walked from my house to the Ann Arbor Amtrak station (just ten minutes, and often the wife and kids would come with me and see me off) and took the one hour Amtrak ride to the Detroit Amtrak station, which is just a few blocks from the Wayne State campus and the Great Lakes Environmental Law Center office in TechTown.  Because the Amtrak is not operated as a commuter train (the Ann Arbor-Detroit segment is basically the end of the Chicago-Detroit route), the schedule is terrible for someone who works a day job.  So I usually spent the night in Detroit to be at work by 8 am.  The return schedule is much better, and some good friends would often meet me for a drink at Casey’s Tavern in Ann Arbor across from the train station (a perfect way to end the day). 

Over the semester, I saved at least $1,000 by not having to pay for a car, insurance, gas, and parking (the Amtrak ride is about ten bucks, which is what I would spend on gas alone when it was at $4 a gallon).  I could plug in my laptop and get more work done without taking time away from my family.  There’s often good conversation with other commuters, especially Lyke Thompson, Director of Wayne State’s Center for Urban Studies, who regularly rides the train back to Ann Arbor and is an incredible source of information on a range of urban environmental issues. 

The train ride itself is worth the trip, as you get a great view of the landscape from Ann Arbor to midtown Detroit.  Near Ann Arbor, the tracks follow the Huron River and its many parks with beautiful scenery.  After passing through downtown Ypsilanti (with no stop), the landscape changes as the tracks cut through Dearborn and west Detroit.  It’s not pretty.  You see abandoned junk, abandoned cars, abandoned factories, abandoned homes, abandoned land.  It’s an overwhelming visual reminder of the cost of our disposable consumer culture.  But in some ways I love it, and both the scenic Huron River and abandoned buildings of Detroit inspire and motivate my environmental work in different ways.

With a little political leadership and regional vision, we could soon have a real Ann Arbor-Detroit commuter train.  SEMCOG (metro Detroit’s regional transportation authority) is moving forward with the Ann Arbor-Detroit Regional Rail Project.  I’ve been told that the new trains will be running by fall 2010, as the project has been studied and planned for several years now.  It’s about time.  Along with bringing high speed rail to the Midwest and light rail to Detroit, an Ann Arbor-Detroit commuter train would be a huge step forward for the whole region.

EPA takes major steps towards regulating greenhouse gas pollution

The Obama EPA is moving forward with several major steps towards regulating the greenhouse gas pollution that causes climate change.  Most significantly, the EPA just announced a proposed endangerment finding for greenhouse gas pollution.  The endangerment finding would trigger a new regulatory process for carbon dioxide emissions and other climate change pollutants.  (For an overview of the EPA’s endangerment finding, see this internal EPA presentation detailing the process and analysis, and see the EPA's webpage for additional information.)  Under the federal Clean Air Act, an endangerment finding would require EPA to begin the process of regulating greenhouse gas emissions from cars and light trucks, as well as new and modified stationary sources (such as coal-fired power plants and other major polluters).

This has been coming ever since the U.S. Supreme Court’s Massachusetts v. EPA decision in 2007, which held that greenhouse gases are pollutants under the Clean Air Act and that the EPA must either issue an endangerment finding or justify a decision not to do so.  With the overwhelming scientific data and studies demonstrating the harm from greenhouse gas pollution and climate change (heat waves, reduced freshwater supplies, coastal flooding, harmful air quality, infectious diseases, etc.) the endangerment finding was the only lawful outcome.  Still, the Obama administration and new EPA leadership should be commended for moving forward with this important regulatory step when the Bush administration delayed and avoided compliance with the Clean Air Act for years. 

The Obama EPA is also taking public comments on its proposed mandatory greenhouse gas reporting rule.  The proposed rule would require thousands of major greenhouse gas polluters to report emissions of carbon dioxide and other significant pollutants that cause climate change.  Reporting greenhouse gas emissions is an important first step towards eventual mandatory federal controls of greenhouse gas emissions, either through the Clean Air Act or new legislation.  The EPA is also expected to grant California’s requested waiver to put in place stricter greenhouse gas emissions requirements for cars, a move that many other states are certain to follow. 

The Obama administration is simply following existing laws (most notably the federal Clean Air Act) in moving forward with these regulatory actions.  Unless or until Congress enacts a meaningful and effective new statute to regulate greenhouse gas pollution, regulatory action under the Clean Air Act is required and critical for preventing catastrophic climate change.